New NLRB Rules Should Aid Organizing

October 13, 2011 by Beeson Tayer & Bodine

The NLRB has proposed two sets of regulations that will take effect this fall and make organizing a bit easier. One of the proposed rules is quite simple — it requires all private sector employers subject to the jurisdiction of the NLRB to post notices in the workplace advising employees of their rights under the National Labor Relations Act. The other rule will greatly streamline and simplify the NLRB’s procedures for processing election petitions and scheduling elections.

Posting Rule The noticeposting rule takes effect November 14, 2011. The notices themselves — to be printed on 11 x 17 paper — will be available at NLRB regional offices and on the NLRB web site starting October 1. Besides advising employees of their rights to organize and join unions, bargain collectively, and strike, the notices provide information about illegal employer conduct such as interrogating employees about union support or prohibiting them from distributing union literature on non-work time in break rooms and parking lots.

The NLRB states that it will enforce this posting requirement through its normal process for filing unfair labor practice charges. The Board has indicated that such a charge may be dismissed if the employer simply posts the notice as required. Nonetheless, if an employer targeted for organizing has not posted a notice of employee rights, filing a charge to force it to do so would send an early and strong signal to the employees that the union is fighting for them and has some muscle.

Election Rules The proposed NLRB election rules would significantly hinder (Continued from page 1) employers from using the types of delaying tactics that have become commonplace in recent years to thwart organizing efforts. Under the proposed rules, once an election petition is filed the NLRB will schedule a pre-election hearing to be convened no more than seven days later – – except for truly extraordinary circumstances, no continuances allowed.

The issues that are currently litigated in pre-election hearings — and which often cause delays of several weeks or even months — concern the appropriateness of bargaining units and the inclusion of certain groups or individuals in bargaining units. For example, an employer might claim that several lead employees are supervisors and should be excluded, or that a group of drivers in a wall-towall unit of all an employer’s employees should be excluded as not sharing a community of interest.

However, the proposed election rule would prohibit such issues from being raised in a pre-election hearing unless 20% or more of the bargaining unit was at issue. If not, the Board will hold the election and defer any issue about the inclusion or exclusion of certain employees until afterward. Thus, elections will be conducted much more quickly in many cases, depriving employers of the ability to hire labor “consultants” to hold captive audience meetings and intimidate their employees over long periods of time.

Even if a pre-election hearing is held, the NLRB will require it to be held on consecutive days and without the filing of post-hearing briefs, which would also greatly streamline the process. Employers will be required to include employee phone numbers and email addresses on the voter (“Excelsior”) lists they are required to prepare, and they will have to be provided in electronic form and within two days of a direction of election being issued. The public comment period on these election rules will end on October 3. Predictably, many Republicans in Congress are objecting. We expect the House Republicans to try to include riders on the NLRB’s appropriations bill this fall to prevent the NLRB from finalizing its proposed election rules. A recently released memorandum to House Republicans from Rep. Eric Cantor, suggests legislation overturning final NLRB election rules.

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